Separation Agreements

A common request is to get a "legal separation."  There is no court order in Virginia that is called a "legal separation."  Two things that do exist are an agreement between the spouses that says how things are to be handled.  These may be called a "separation agreement" or a  "marital settlement agreement."  Regardless of the name, they are the same thing.  

The other thing that people may be thinking of when they say they want a "legal separation" is a temporary court order that will determine the rules they will have to follow while the case is pending.  This is the preliminary order that the court makes and is called a pendente lite order. 

Separation agreements can resolve all of the issues in the divorce or they can deal with some issues and leave others for the judge to decide.  Even if you can only agree about half of the issues in the case, you are still wise to resolve those issues in an agreement and focus your energies on the areas where you really cannot agree.

Separation agreements have to be signed to be enforceable.  It is customary, but not legally required, that they be notarized.  It is also prudent to have the parties initial each page so that it is not possible to later claim that text was tampered with.   It is not a good idea to do your own agreement without legal advice.  Generic forms found in a book or on the internet may create unintended problems.   It is better to make a list of points to which you have agreed and give it to a lawyer to turn into a separation agreement.  

When the divorce is finalized, the separation agreement will be made part of the court's order.  This is an important aspect of separation agreements because the obligations undertaken in the agreement can then be enforced by the court's contempt power and a party can be sent to jail for failing to do things the agreement requires.   A second aspect of separation agreements is that some of the rights they confer cannot be changed by the court.   

This combination of an obligation enforceable by jail time and no possibility of the court modifying it can be devastating to a party who has over-promised.   And a spouse who is the beneficiary of a generous provision should question the lawyer representing them very carefully if there is an attempt to persuade a judge to change something that is spelled out in the agreement.  Child support and child custody issues can always be changed by the court.  But an unqualified promise to pay spousal support may not be changeable by the judge.